More on the awkwardness of Charles and the Canadian Constitution

I have a piece up today at Policy Options looking at Prince Charles’ awkward constitutional status in Canada.

The article mentions the divisibility of the Crown and Canada’s previous position on royal succession.

For those who are interested, here’s an elaboration of that part of the argument:

Canada was under the sovereignty of the Imperial Crown of the United Kingdom when the Dominion was confederated in 1867. There was no notion of a separate Canadian Crown at the time, nor of a distinct Queen of Canada. Following the Statute of Westminster, 1931, however, the Imperial Crown was gradually divided, such that there were separate and distinct Crowns and Queens for the United Kingdom, Canada, and the other Dominions. This was reflected in the Sovereign only taking advice from the ministers of the Dominions for matters that affect their state alone, the updating of Royal Styles and Titles, and the seminal finding of the English Court of Appeal in the 1982 Alberta Indians case, where Lord Justice May noted that “In matters of law of government the Queen of the United Kingdom is entirely independent and distinct from the Queen of Canada.” If the British and Canadian Crowns are now separate and distinct, the Prince can only have a constitutional status in Canada by virtue of Canadian law.

This brings us to the second option: that references to the Queen in the constitution implicitly give her successors a Canadian status. Historical developments up to 1982 reinforce this interpretation. When Canada was a Dominion of the British Empire under the sovereignty of the Imperial Parliament, British laws related to royal succession applied to the colonies and self-governing Dominions by paramount force. This meant that the Act of Settlement, 1701, the main law dealing with royal succession, applied in Canada. Following the Statute of Westminster, 1931 the British Parliament was prevented from legislating for Canada without the request and consent of the Canadian government. Hence, an alteration to the British law of royal succession would no longer apply automatically to Canada through paramount force. The Canadian government would need to request and consent that the British law apply to Canada. This is what occurred in 1936 when Edward VIII abdicated. Since his abdication required a changes to the law of royal succession, the Canadian government requested and consent that the British Parliament’s His Majesty’s Declaration of Abdication Act, 1936 extend to Canada.

Further evidence that Canadian law included matters of royal succession came in 1978, when the Trudeau government introduced Bill C-60, An Act amending the Constitution. Section 30 of C-60 would have styled and titled the Queen as the “Queen of Canada” alone and held that her “her sovereignty as such shall pass to her heirs and successors in accordance with law.” This reference to law must have meant Canadian law for two reasons. First, the purpose of the Bill was to sever Canada’s legal and constitutional ties with the United Kingdom, as well as clarify that the Queen of Canada was uniquely Canadian. Second, the explanatory notes accompanying the Bill make no mention of the statement surrounding succession. If the intent had been to break with the precedent set in 1936, then one would expect it to at least be mentioned.

Bill C-60 was later abandoned and a new constitutional framework was negotiated between the federal and provincial government. When completed, the draft of what would become the Constitution Act, 1982 only included a provision that that “office of the Queen” would require the unanimous consent of Parliament and provincial legislatures to amend. When asked in 1981 why laws related to royal succession were not included in the schedule of the new constitutional document, then attorney general Jean Chrétien assured a parliamentary committee that the schedule was not exclusive; those laws were part of the Canadian constitution, despite not being explicitly mentioned.

After the Constitution Act, 1982 came into force, the Canadian government changed its mind. After the Commonwealth heads of government agreed to update the laws of royal succession in 2011, Queen Elizabeth II’s realms began updating their respective rules. Australia and New Zealand passed their own act updating the rules of royal succession in Australian and New Zealand law, as did the United Kingdom. Canada chose a different course. The Canadian government merely asked Parliament to assent to Britain’s new royal succession bill.

In effect, the Canadian government reverted to its pre-1931 position, effectively arguing that the British law of royal succession automatically applies to Canada, no longer by paramount force, but owing to an uncodified principle.

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